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KOLESAR v. NAVISTAR INTL. TRANSP. CORP.

August 31, 1992

HELEN KOLESAR, Individually and as Administratrix of the Estate of JOHN M. KOLESAR, deceased, Plaintiff
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP., formerly known as INTERNATIONAL HARVESTER COMPANY, Defendant


Kosik


The opinion of the court was delivered by: EDWIN M. KOSIK

This matter is before the court on the plaintiff's motion for a new trial.

 This action was commenced by the plaintiff individually and as administratrix of her husband's estate. The action seeks damages for strict liability under Section 402A of the Restatement (Second) of Torts on a theory of "crashworthiness." *fn1"

 The pertinent history is that the decedent was operating an agricultural tractor manufactured by the defendant in January 1967. At the time of its manufacture and sale, the tractor was not equipped with any roll-over protection or seat belts (ROPS), and it was not so equipped at the time of the accident on July 3, 1990. On that date, while towing two empty haywagons, decedent was exiting a township dirt road onto a state rural paved road. In turning onto the state road, the tractor upset or rolled over laterally resulting in the decedent being pinned to the ground by the weight of the tractor. He was found dead.

 Plaintiff claims the tractor was defective in design because it was not equipped with ROPS. She does not claim that the defect in design caused the decedent to lose control of the tractor. Rather, plaintiff claims that had the tractor been equipped with ROPS at the time of the accident her husband would have walked away from the accident uninjured. In this context, she proceeded against the manufacturer under a "crashworthiness" theory. While other claims were made in the complaint, all were withdrawn before trial.

 Following trial and deliberation over a number of jury questions, the jury returned its verdict by responding in the negative to the first question which asked them if plaintiff had sustained her burden of proof in establishing that the tractor was defective in design without the ROPS.

 Plaintiff filed a motion for new trial assigning eight alleged trial errors; one allegation containing eleven sub-parts. Not all of the errors were briefed. Accordingly, we will only address those briefed by both sides.

  I.

 Plaintiff claims defense counsel substantially prejudiced the plaintiff with his closing remarks to the jury which are prohibited in a crashworthiness case. Plaintiff has singled out the objectionable remarks and the court's ruling:

 
MR. NORWOOD: It was not an automobile, It was not a motorcycle. It was not -- it was not a bulldozer intended for use in the forest where you're plowing up trees. It was designed like this, as an open tractor, a conventional tractor. And it's obvious that it didn't have a cab. It might be safer with a cab. You might be engaged in agricultural production in some fashion where it was important to keep things from falling on you. For example, you might need a cab. It could be made safer with a cab. There may be certain circumstances where a cab would not be very good to use. You might be in bars or low --
 
MR. KELLY: Objection, your Honor. This is beyond the scope of the case. This is a crashworthy case, and I submit that his argument is beyond that and I object.
 
THE COURT: The objection is overruled.
 
(Continuation of closing statement to the jury by Mr. Norwood).
 
MR. NORWOOD: But the simple point is, you are judging the tractor for what it is, not what it might have been. When John Kolesar bought this tractor in 1984, that tractor was 17 years old. He did not buy a new tractor. He did not apparently want or perhaps afford a new tractor. He ...

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